Steps To Getting A Divorce In Ontario: A Simple Guide

In order to qualify to get a divorce in Ontario, you must:

• Have been legally married in Canada or another country
• Intend to permanently separate from your spouse (or have done so already), with no chance of getting back together
• Have lived in Ontario, as must your spouse, for at least 12 months before you apply for divorce

You must be able to prove that your marriage is irreparably broken. The courts will deem this true if:

• You and your spouse have lived apart for at least a year and consider the marriage over
• Your spouse has committed adultery and you have not forgiven him or her
• Your spouse has been mentally or physically cruel to you such that continuing to stay together is an impossibility

In order to receive a divorce for the above reason, you must be able to prove that the adultery or abuse happened.

Beginning the divorce process

Although it’s not always necessary to get a lawyer to complete divorce in Ontario, you should seek the advice of and then retain one if it’s clear there will be issues that will need to be worked out, such as child custody issues or support. Most courts will not grant a divorce if child custody issues are not resolved.

Fill out a divorce application

This written document is submitted to the court. The “applicant spouse” (person applying for divorce) or his/her lawyer asks the court to grant the divorce, and will “plead” or state the facts that are the basis for the divorce. The applicant spouse will be able to explain the circumstances of the marriage and resulting divorce to the court and to plead for any terms for the children, if applicable.

The application starts the court proceedings and therefore must be served to the responding spouse in person.

The applicant spouse must submit a financial statement to the court along with the application. The financial statement is prepared by the applicant spouse’s lawyer and will state the applicant spouse’s income, expenses, liabilities and assets, and swear that the contents of that document are true.

Wait for an answer from the responding spouse

The responding spouse (who is served the application for divorce) is then given 30 days to address the claims that are in the application. The responding spouse agrees or disagrees with the claims as made in the application, and supplies any additional facts relevant to the case. The responding spouse is also allowed to make his or her own claims if the application left out any relevant facts.

If the responding spouse fails to submit an answer to the application within 30 days, the applicant spouse is allowed to proceed in court without the responding spouse, or any evidence that would have been supplied by the responding spouse, including with a trial.

The responding spouse must also submit a financial statement with their reply.

Allow for a reply from the applicant spouse

The applicant spouse is given 10 days to reply to the responding spouse’s answers and claims. The applicant spouse cannot bring in any new evidence or claims in the reply for divorce in Ontario, but can only respond to existing evidence or claims.

Appear in court

• First appearance

This is a very short appearance to schedule the first case conference for a divorce in Ontario. This first meeting is generally not done before judge but a court clerk. You may not have to make this first appearance at all, and can simply fill out a form or have your lawyer attend if necessary.

• Case conference

This is an informal meeting between spouses, lawyers, and judge. The judge may ask questions to clarify issues and respective positions. You’re encouraged to communicate with your spouse to reach a settlement for your divorce in Ontario.

If necessary, timelines, schedules, and the exchange of documents may also be planned for the case to progress.

• Settlement conference

The settlement conference will be scheduled if you can’t reach an agreement. Lawyers submit settlement conference briefs for both parties; these briefs summarize the issues in your case and propose how to settle the matter in its entirety.

The judge will determine what you’ve done to settle your divorce in Ontario, and offer opinions if necessary. Again, the judge’s role is to bring you to an agreed-upon resolution.

• The trial management conference

This is the last stage before you go to trial, and as with the previous conferences, your divorce lawyers will submit briefs in advance. These inform the court of any witnesses to be called and will set forth a schedule of time to be spent on each part of the trial. Again, the judge will try to help you come to settlement with your spouse in an attempt to avoid a trial.

• The trial

If the case goes to trial (rare), both lawyers can conduct questionings and get evidence from witnesses to be read into the court record. Witnesses are allowed to be examined or cross examined, and spouses are also called as witnesses. If expert witnesses testify or prepare reports, their time will be charged to the spouse who requested the expert be involved.

• The decision

With a divorce in Ontario trial, the judge makes the final decision. You and your spouse will receive notification of the decision in writing at some point after the trial. The decision is then turned into a court order and enforced.

Alternatives to the court process

Mediation, arbitration, or a combination of both can be used to help settle a divorce case.

• Mediation

Mediation can be used if both you and your spouse agree to be part of the process; you’ll both choose and pay for the mediator jointly.

• Arbitration

As with mediation, you must both consent to arbitration and both will hire the arbitrator. In this case, you will agree to leave decision in the hands of the arbitrator, who will come to a binding decision that must be honoured by both spouses.

• Med/Arb

This process begins with a mediation between you and your spouse, guided by the mediator. If the mediation fails, the mediator then arbitrates the dispute and makes a binding resolution, similar to what happens with a straight arbitration.

Simple divorce

• When the divorce is “sole” or uncontested

This happens when you are suing your spouse just for divorce, not to include any division of property, spousal support, child custody, etc. You file your application with the court, serve your spouse, give your spouse 30 days to respond (60 days if served outside of the US or Canada) and wait for him or her to contest the divorce or reply with his or her own claims. If no contest is made or he or she does not respond, the divorce is then uncontested.

• Joint divorce

With this, both you and your spouse sign the required divorce papers together, with neither spouse suing.

Your divorce will be finalised 31 days after it’s granted. You must request a divorce certificate and pay $19 for it once your divorce is final. You don’t need a divorce certificate unless you want to get married again.

Our Toronto Divorce Lawyers are well experienced in this guide, so if you would like to talk with one to understand family law, we invite you to your free initial consultation.